Tuesday, August 14, 2007

Philip Morris is so far ahead of the anti-smoking and health groups in its foresight on the issue of the FDA tobacco legislation that it is difficult for me not to admire its brilliance. The legislation offers so many advantages to the company, and it is hard to see all of them unless one actually envisions the consequences of enactment of the legislation. In contrast to what the Campaign for Tobacco-Free Kids and other health groups appear to be counting on, the tobacco companies will not respond to the FDA legislation by doing nothing. Here is what I imagine to be the likely response of the companies to the advertising restrictions alone in the wake of passage of this legislation:

Just one month after Congress enacted legislation giving the Food and Drug Administration (FDA) the authority to regulate tobacco products and codifying strict rules limiting cigarette advertising to youths, a number of cigarette companies are challenging the constitutionality of the advertising limits.

Reynolds American, Lorillard, and the United States Smokeless Tobacco Company filed suit in a federal court yesterday, seeking to overturn the legislation's advertising limits. The companies claim that these restrictions violate their free speech rights under the First Amendment to the Constitution.

The companies cited a Supreme Court ruling in 2001, in which the Court ruled that Massachusetts regulations which banned cigarette advertising within 1,000 feet of schools and playgrounds violated the First Amendment because they unduly restricted the commercial free speech rights of cigarette companies.

In that case, the Court ruled that: "The State's interest in preventing underage tobacco use is substantial, and even compelling, but it is no less true that the sale and use of tobacco products by adults is a legal activity. We must consider that tobacco retailers and manufacturers have an interest in conveying truthful information about their products to adults, and adults have a corresponding interest in receiving truthful information about tobacco products." The basis of the Court's ruling was that the Massachusetts advertising restrictions were too broad.

The advertising restrictions in the law passed by Congress last month are even broader than the Massachusetts regulations. Like the Massachusetts regulations, they ban outdoor tobacco advertising within 1,000 feet of schools. However, they also limit advertising in magazines with greater than 15% youth readers to a black and white, text-only format, ban all tobacco company sponsorship of sports and entertainment events (even in adult-only venues), ban giveaways of non-tobacco promotional items (even with confirmation of adult age), and limit all outdoor and point-of-sale advertisements to black and white text only (even in adult facilities).

In a prepared statement, Reynolds American said: "These advertising restrictions are clearly much broader and more sweeping than fits the stated purpose of keeping advertising away from minors - a goal that we support. By banning sponsorships of events in adult-only venues, prohibiting promotional marketing to confirmed adults, and placing limits on advertising even in adult-only establishments, Congress has clearly overstepped its intended purpose of limiting advertising targeted at minors. Because the restrictions are not tailored narrowly to achieve that purpose, they violate the First Amendment. We feel confident that the Supreme Court will agree, and will protect our right to communicate with our legal-age customers."

A coalition of anti-smoking and health groups countered with a statement of their own, imploring the Supreme Court to uphold the advertising limits: "This is too important an issue for the Supreme Court to let the Constitution get in the way. These advertising restrictions will save countless lives. This is all about the children. Millions of children will die if the Supreme Court does not take the responsible action and curtail the marketing of deadly products to children."

In a surprise to many, the nation's leading cigarette company - Philip Morris - did not join the other tobacco companies in bringing the lawsuit. In a statement released yesterday, the company said: "We believe that the FDA legislation represents an effective and meaningful regulation of tobacco products. Our chief concern is for the health of our nation's children, and we support the limits that the legislation places on advertising that might unintendedly reach young people. Minors should not be smoking and we will, as we have done for years, continue to do everything we can to ensure that minors do not smoke."

Many analysts believe that by separating itself from the other tobacco companies on the issue of advertising restrictions, Philip Morris may gain from a boost in its public image. The separation allows Philip Morris to paint itself as a company that really cares about keeping cigarettes out of the hands of children. Financial analysts believe that the company is casting itself as a changed and more socially responsible one.

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About Me

Dr. Siegel is a Professor in the Department of Community Health Sciences, Boston University School of Public Health. He has 32 years of experience in the field of tobacco control. He previously spent two years working at the Office on Smoking and Health at CDC, where he conducted research on secondhand smoke and cigarette advertising. He has published nearly 70 papers related to tobacco. He testified in the landmark Engle lawsuit against the tobacco companies, which resulted in an unprecedented $145 billion verdict against the industry. He teaches social and behavioral sciences, mass communication and public health, and public health advocacy in the Masters of Public Health program.